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Stand Your Ground Defense Applies Even if the Alleged Victim Is Unarmed

On behalf of Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law posted in Criminal Defense on Friday, February 7, 2014.

Florida's Stand Your Ground Law (SYGL) (§776.032, Fla. Stat. (2013) gives a person both immunity from criminal prosecution and civil liability from the use of deadly force when he or she believes that such force is necessary to prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. This law also provides that before the reasonableness of force issue is presented to a jury, the trial court must decide whether the case should proceed at all. When the defendant files a motion to dismiss on SYGL, the trial court must decide whether "...based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant." This is known as an objective standard; it is not what the defendant believed, it is what a reasonable person would have believed.

The difficulty in applying this law arises when different courts through the State grapple with what is reasonable under the circumstances of each individual case. Recently, in Mobley v. State, ___ So.3d ___, 39 Fla.L.Weekly D64b, the Third District Court of Appeal concluded that SYGL applies even if the alleged victims were unharmed. As with every SYGL case, the facts of the case are critical which is why it is so important to investigate such cases quickly and thoroughly. Preservation of evidence is essential to the defense.

In Mobley, the defendant was charged with two counts of second degree murder after shooting two unarmed men outside a Chili's Restaurant. But the fact that the alleged victims were unharmed was not the end of the inquiry. Instead, the court looked to what it called "the totality of the circumstances" and concluded Mr. Mobley was in fact justified in believing "...the danger could be avoided only through the use of deadly force." Those circumstances were that a prior altercation, which Mr. Mobley had tried to quell, had occurred between the two victims and the individuals with whom Mr. Mobley was socializing in the restaurant. In addition to some aggressive gestures, after Mr. Mobley and one of his friends (Mr. Chico) left the restaurant, one of the victims rapidly approached and assaulted Mr. Chico, fracturing his eye socket. The second victim likewise rushed toward both Mr. Chico and Mr. Mobley, and, while in close proximity to the men, reached under his long, baggy shirt. At this point, Mr. Mobley drew his gun and shot both victims.

Under the particular facts of this case, the court concluded Mr. Mobley acted reasonably and the criminal charges against him should have been dismissed. In doing so, it noted, "Mobley did not shoot two innocent bystanders who just happened upon him on a sidewalk." Instead, he found himself the middle of a violent, unprovoked attack on his companion, after an earlier confrontation which Mr. Mobley had witnessed. Thereafter, the attacker "immediately turned his attention to Mobley" and was joined by a second man. Only when the second man reached under his shirt while joining the attack, did Mr. Mobley shoot.

Whether or not Mr. Mobley should have left the area around the restaurant before the altercation occurred was not relevant to the court's inquiry. Indeed, it concluded, "Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack." Mr. Mobley's defense was greatly aided by a video which was recorded by a security camera located outside the restaurant. This recording substantiated Mr. Mobley's version of events and also established the speed with which an encounter can turn deadly - twelve seconds in this case.

Each Stand Your Ground case will have its own unique set of facts. In litigating these cases, pretrial investigation is the cornerstone of a good defense. Witnesses should be quickly located and interviewed. Nearby premises should be canvassed to see if video recordings are available. If so, immediate steps must be taken to preserve those recordings. Waiting to investigate for even a day can result in the destruction of crucial defense evidence.

For this reason, the Mobley decision imparts two important lessons. The first is a person can reasonably believe there is an objective danger of imminent harm even if the alleged victim is unarmed. The second is that time is of the essence in locating and retaining competent legal counsel when mounting such defense.

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